English Courts continue to exercise jurisdiction over global FRAND cases
In August 2020 the Supreme Court affirmed the UK courts’ jurisdiction to determine global FRAND licences in Standard Essential Patent cases (Unwired Planet v Huawei, and Conversant v Huawei & ZTE). The Supreme Court did not claim that that jurisdiction was an exclusive one. Subsequently several defendants to UK infringement actions have begun proceedings in other countries, filing applications to stay the UK proceedings while the FRAND issues are determined elsewhere. The High Court has recently denied applications to stay in two such cases: Nokia Technologies OY & Anor v OnePlus Technology (Shenzhen) Co., Ltd & Ors and Koninklijke Philips N.V. v Xiaomi Inc & Ors.
In Koninklijke Philips v Xiaomi, Mr Justice Mellor determined that Xiaomi did not have a jurisdiction challenge under CPR Part 11. In Nokia Technologies OY v OnePlus Technology, Judge Hacon determined that the English courts had jurisdiction despite the existence of an alternative forum – Chongqinq Court in China – that was prepared to settle a global licence between the parties. The judge ruled that the dispute in Nokia Technologies OY v OnePlus Technology is characterised in the same way as in Conversant – namely essentiality, infringement and validity of a UK patent – and these issues would not be considered by the Chongqinq Court (irrespective of the overlap in the disputes before the English and Chinese courts as to what constitute FRAND terms for a licence under Nokia’s patents). As Judge Hacon commented, the current unevolved framework for the settlement of a global licence is unsatisfactory, but until an internationally recognised tribunal or alternative mechanism for settling global licences is agreed, national courts must deal with circumstances as they are.
